MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 February 2003
         DOCKET NUMBER: AR2002073146

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Lawrence Foster		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

APPLICANT STATES: That during his service period from 26 September 1978 to 22 April 1980 two charges were brought against him in March and August of 1979 and he was found guilty in both cases. The first offense was for being absent without leave (AWOL), which during that period he was actually on bed rest. He also states that he took the paperwork regarding his bed rest to his company commander. On the second charge, he remembers that he was on barracks detail and does not know why personnel were not informed. This separation has prevented him from employment, training, and financial assistance through the Veterans Commission for housing and food assistance. He further states that his 1^st sergeant asked him if he wanted to be separated from the Army and gave him a lot of papers to sign. He submits 5 character references, his Certificate of Achievement and a copy of his DD Form 214 (Certificate of Release from Active Duty) in support of his application.

COUNSEL CONTENDS: Counsel supports the contentions of the applicant, but furnishes no evidence beyond that of record.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army for 4 years as a private, pay grade E-1, on 25 September 1978.

On 9 March 1979, he was punished under Article 86, Uniform Code of Military Justice, (UCMJ), for AWOL from on or about 5 March to on or about 6 March 1979. His punishment included forfeiture of $100.00 pay (suspended for 30 days) and 14 days extra duty. He did not appeal the punishment.

On 15 August 1979, he was punished under Article 86, UCMJ, for failure to go to his appointed place of duty, with intent to deceive. His punishment included reduction to pay grade E-1, forfeiture of $90.00, a verbal admonition and 14 days extra duty.

He was reported AWOL on 9 January 1980 and dropped from the rolls on 8 February 1980. He was returned to military control on 14 February 1980.

On 1 April 1980, he was referred to a special court-martial. He was charged with 1 specification of AWOL from on or about 9 January to on or about 14 February 1980.




On 1 April 1980, his commander recommended separation proceedings against the applicant under the provisions of Army Regulation 635-200, chapter 10.

On the same day his commander recommended that the applicant be discharged for the good of the service and issued an UOTHC discharge. The commander stated that the applicant had numerous opportunities to become a productive soldier. The applicant’s duty performance was marginal and he had been counseled on his frequent absenteeism. The applicant has been cleared both physically and mentally for any action deemed appropriate by the command.

After consulting with counsel the applicant voluntarily requested discharge for the good of the service. He stated that under no circumstances did he desire further rehabilitation and no desire to perform further military service. He also acknowledged that he understood he could receive a UOTHC discharge and the possible effects of this type of discharge.

On 18 April 1980, the appropriate authority approved his discharge for the good of the service and directed a discharge UOTHC and reduction to the lowest enlisted grade.

He was separated on 22 April 1980, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, Administrative Discharge Conduct Triable by Court-Martial with a UOTHC discharge. He was credited with 1 year, 5 months and 18 days total net service and lost time from 2 March through 4 March 1979 and 9 January through 13 February 1980 due to AWOL.

On 20 November 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge.

The character reference letters submitted by the applicant attest to his completion of a substance abuse program, willingness to work hard and his determination.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge UOTHC is normally considered appropriate.

Paragraph 3-7 of this regulation provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board has noted the applicant’s contentions that he was charged with AWOL when in fact he was on bed rest and the other time he was at his place of duty in a warehouse on base. The applicant further contests that his separation has denied him employment, training and financial assistance. However, the applicant was punished under the UCMJ for AWOL and failure to go to his appointed place of duty. He did not appeal his punishments. The Board also notes that when the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial, he was advised that he would be deprived of many or all Army benefits and may be ineligible for many and all benefits administered by the Veterans Administration. Neither the applicant nor counsel has submitted either probative evidence or a convincing argument in support of their request.

3. The Board also notes that the applicant was counseled on several occasions for AWOL and scheduled for court-martial charges for the same offense. His commander stated that the applicant had numerous opportunities to become a productive soldier. The applicant’s duty performance was marginal and he had been counseled on his frequent absenteeism.

4. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

5. Notwithstanding the character reference letters submitted by the applicant that note his improved work performance and self determination, these post-service comments are not sufficiently mitigating by themselves to excuse the misconduct that led to his UOTHC discharge.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_JNS____ _REB___ _LF_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002073146
SUFFIX
RECON
DATE BOARDED	20030225
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A70
2.
3.
4.
5.
6.